Tyrone Bowen v. State ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00405-CR
TYRONE BOWEN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2010-1073-C2
MEMORANDUM OPINION
In this appeal, appellant, Tyrone Bowen, challenges the trial court’s denial of his
“Request for Recession of Order Withdrawal Funds From Inmate Prisoner’s Trust
Account.” In particular, Bowen asserts that the amount ordered to be withdrawn from
his inmate account is improper because it includes attorney’s fees for his court-
appointed lawyer, though he was determined to be indigent. We dismiss this appeal as
untimely.1
I. BACKGROUND
On August 18, 2010, Bowen was charged by indictment with felony burglary of a
habitation. See TEX. PENAL CODE ANN. § 30.02 (West 2011). The indictment contained an
enhancement paragraph and a paragraph documenting that Bowen is a habitual felony
offender.2 Prior to trial, Bowen informed the trial court that he is indigent and
requested a court-appointed attorney. The trial court determined that Bowen was
indigent and appointed him counsel.
Thereafter, Bowen and his court-appointed attorney signed a waiver of appeal as
part of a plea bargain with the State regarding the underlying charged offense. In this
document, Bowen specifically waived:
Each and all of my rights to appeal, including the filing [of] a Motion for
New Trial, requesting permission to appeal, appealing matters raised by
written motion prior to trial, giving Notice of Appeal, appealing the
Judgment, Sentence or Order of the Court, and a free record, transcript
and attorney on appeal. I make this WAIVER freely, intelligently[,] and
voluntarily. I desire to accept the Sentence or Order of the Court, and ask
the Court to allow me to WAIVER ALL RIGHTS I HAVE TO APPEAL. I
ask the Court to approve this Waiver, which will render the Judgment,
Sentence or Order of the Court FINAL in all respects.
(Emphasis in original). Bowen also signed a judicial confession, wherein he pleaded
guilty to the charged offense and stipulated that all of the paragraphs contained in the
indictment are true.
1 In light of our opinion, all pending motions are dismissed as moot.
2 Accordingly, the punishment range in this case was enhanced to twenty-five to ninety-nine
years or life in prison. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2012).
Bowen v. State Page 2
The trial court accepted Bowen’s plea and sentenced him to thirty years’
incarceration in the Institutional Division of the Texas Department of Criminal Justice
(“TDCJ”).3 The trial court also imposed $1,039 in “court costs,” which was handwritten
on the judgment.
The record reflects that the trial court signed and entered its judgment on
November 23, 2010; however, an uncertified bill of costs with a date of December 1,
2010 was included in the record. The uncertified bill of costs reflected that of the $1,039
in “court costs” assessed, $750 was intended to reimburse the county for the court-
appointed attorney’s fees Bowen incurred.
On the same day that the judgment was signed, the trial court also signed an
order to withdraw funds from Bowen’s inmate account pursuant to section 501.014 of
the Texas Government Code. See TEX. GOV’T CODE ANN. § 501.014 (West 2012).
Specifically, the order stated that $1,039 in “[c]ourt costs, fees and/or fines and/or
restitution have been incurred.” This order was faxed to the TDCJ on January 21, 2011.
Nearly a year and a half later on August 20, 2012, Bowen filed a “Request for
Recession of Order Withdrawal Funds From Inmate Prisoner’s Trust Account” in the
trial court. In this filing, Bowen complained that the TDCJ was withdrawing too much
money from his inmate account. In particular, Bowen asserted that he was not
responsible for the reimbursement of court-appointed attorney’s fees because he is
3 In its certification of Bowen’s right to appeal, the trial court indicated that this is a plea-bargain
case; that, as a result of the plea-bargain with the State, Bowen has no right of appeal; and that Bowen
waived his right to appeal.
Bowen v. State Page 3
indigent. On August 22, 2012, the trial court considered Bowen’s filing and denied it in
its entirety.
Subsequently, on September 14, 2012, Bowen filed a “Motion to Modify, Correct,
or Rescind,” asserting substantially similar arguments as those made in his August 20,
2012 request. Three days later, on September 17, 2012, the trial court heard Bowen’s
motion and denied it in its entirety. On November 2, 2012, Bowen filed a “Direct
Appeal” with this Court.
II. CIVIL VS. CRIMINAL[4]
A. The Texas Supreme Court’s Harrell Decision
In Harrell v. State, appellant was sent copies of the trial court’s withdrawal orders
to withdraw $748 from his inmate account to pay for court costs and court-appointed
attorney’s fees related to earlier proceedings. 286 S.W.3d 315, 317 (Tex. 2009).
Appellant moved to rescind the orders on the grounds that he was denied due
process—namely, the opportunity to present evidence of his inability to pay the
assessed costs. Id. The trial court denied appellant’s motion, and the court of appeals
dismissed his appeal for lack of jurisdiction, noting that there is no statutory mechanism
for appealing a withdrawal order. Id.
The Harrell Court proceeded to analyze whether the issue was civil or criminal in
nature. Id. at 317-19. This analysis was critical in determining whether the Supreme
Court or the Court of Criminal Appeals has jurisdiction over this issue. In concluding
4 The discussion about whether Bowen’s appellate complaints are civil or criminal in nature is
central to our jurisdictional inquiry. See Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996) (en
banc) (“A court has jurisdiction to determine whether it has jurisdiction.”)
Bowen v. State Page 4
that withdrawal orders are more civil in nature than criminal, the Harrell Court noted
that the withdrawal orders at issue were incidental to appellant’s criminal conviction
and were a mechanism to enforce the criminal judgment, but they did not arise over
enforcement of a statute governed by the Code of Criminal Procedure. Id. at 318. The
court noted that criminal law was not the focus of the action. Id. In fact, according to
the Harrell court, appellant was not contesting the convicting court’s authority to assess
costs but its authority to collect costs pursuant to section 501.014 of the Texas
Government Code.5
The Harrell Court, in determining that the action was civil in nature, noted that:
Section 501.014 includes costs assessed during criminal matters, but it also
authorizes inmate-account withdrawals for costs arising in civil
5 Section 501.014(e) of the Texas Government Code states:
(e) On notification by a court, the department shall withdraw from an inmate’s account
any amount the inmate is ordered to pay by order of the court under this subsection. The
department shall make a payment under this subsection as ordered by the court to either
the court or the party specified in the court order. The department is not liable for
withdrawing or failing to withdraw money or making payments or failing to make
payments under this subsection. The department shall make withdrawals and payments
from an inmate’s account under this subsection according to the following schedule of
priorities:
(1) as payment in full for all orders for child support;
(2) as payment in full for all orders for restitution;
(3) as payment in full for all orders for reimbursement of the Texas Department of
Human Services for financial assistance provided for the child’s health needs
under Chapter 31, Human Resources Code, to a child of the inmate;
(4) as payment in full for all orders for court fees and costs;
(5) as payment in full for all orders for fines; and
(6) as payment in full for any other court order, judgment, or writ.
TEX. GOV’T CODE ANN. § 501.014 (West 2012).
Bowen v. State Page 5
proceedings, including payment of child support, restitution, health care
costs, and fines. Even as to court fees and costs, the statute applies not just
to criminal cases but to “all orders for court fees and costs.” Moreover,
the subject matter of this appeal does not concern Harrell’s guilt,
innocence, or punishment, the chief features of a criminal proceeding. The
procedure at issue is substantively akin to a garnishment action or an
action to obtain a turnover order. Properly viewed, it is a civil post-
judgment collection action that is (1) distinct from the underlying criminal
judgments assessing Harrell’s conviction, sentence, and court costs, and
(2) aimed at seizing funds to satisfy the monetary portion of those
judgments. The court is enforcing a money judgment that, while
tangentially related to the underlying criminal judgments, is nonetheless
removed from them.
Id. at 318-19 (footnotes omitted). The Harrell Court also noted that prisoners have a
property interest in their inmate accounts. Id. at 319.
Ultimately, the Harrell Court held that:
[A]n inmate is entitled to notice just as happened here (via copy of the
order, or other notification, from the trial court) and an opportunity to be
heard just as happened here (via motion made by the inmate)—but
neither need occur before the funds are withdrawn. Moreover, appellate
review should be by appeal, as in analogous civil post-judgment
enforcement actions.
In this case, Harrell received notice of the trial court’s withdrawal
order on the same day TDCJ received copies of the order. The
Constitution does not require pre-withdrawal notice of a comprehensive
civil garnishment proceeding. Harrell received notice contemporaneously
with the withdrawal orders and had his concerns considered by the trial
court that issued them. Due process requires nothing more.[6]
Id. at 321.
6 In the present case, Bowen has already been determined to be indigent and the record contains
no evidence indicating a material change in his financial situation. Thus, Bowen’s complaint is dissimilar
to Harrell’s due-process complaint in that Bowen does not make a due-process argument seeking an
additional opportunity to present evidence of his indigence. See Harrell v. State, 286 S.W.3d 315, 321 (Tex.
2009).
Bowen v. State Page 6
B. The Texas Court of Criminal Appeals’ Armstrong Decision
Approximately two years later, the Court of Criminal Appeals addressed a
challenge to the district clerk’s bill of costs, which included court-appointed attorney’s
fees despite a determination that appellant was indigent. Armstrong v. State, 340 S.W.3d
759, 763-66 (Tex. Crim. App. 2011). Specifically, the appellant in Armstrong argued,
while relying on the Court’s decision in Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App.
2010), that there was insufficient evidence to support an order to pay attorney’s fees and
that the issue was a criminal-law matter. Id. at 763-64. In reversing the Amarillo Court
of Appeals, the Armstrong Court stated that the court of appeals misconstrued
appellant’s claim as a challenge to the collection of costs, a civil-law matter. Id. at 766.
The Armstrong Court explained:
A clerk’s bill of costs of the criminal conviction is permitted pursuant to
Article 103.001 of the Texas Code of Criminal Procedure, and its issuance
makes the included costs payable under the same statute. Enforcement of
a bill of costs is allowed under Texas Code of Criminal Procedure Article
103.003, et seq. Fees for court-appointed representation are often included
in a bill of costs. Under Article 26.05(g) of the Texas Code of Criminal
Procedure, a trial court has the authority to order the reimbursement of
court-appointed attorney fees:
If the court determines that a defendant has financial
resources that enable him to offset in part or in whole the
costs of the legal services provided, including any expenses
and costs, the court shall order the defendant to pay during
the pendency of the charges or, if convicted, as court costs
the amount that it finds the defendant is able to pay.
“[T]he defendant’s financial resources and ability to pay are explicit
critical elements in the trial court’s determination of the propriety of
ordering reimbursement of costs and fees.” Mayer, 309 S.W.3d 552, 556.
Bowen v. State Page 7
....
Appellant contends that there is insufficient evidence to support
the attorney fees as set forth in the clerk’s bill of costs. Thus, Appellant
challenges the assessment of costs mandated by the clerk’s bill of costs,
which is issued pursuant to Texas Code of Criminal Procedure Article
103.001. And in arguing insufficient evidence, he relies on the critical
requirements set forth in Texas Code of Criminal Procedure Article
26.05(g) (i.e., that he does not have the financial resources to offset, in
whole or part, the costs of the legal services provided). Because
Appellant’s claim arises over the enforcement of statutes governed by the
Texas Code of Criminal Procedure, the pertinent litigation is a criminal
law matter.
Id. at 765-66.
Despite this, the Armstrong Court recognized that the means of collection of
attorney’s fees, such as a withdrawal order entered into pursuant to Section 501.014 of
the Texas Government Code, is a civil law matter. Id. at 766. Ostensibly, the Court of
Criminal Appeals concluded that complaints concerning the collection of costs are civil
matters, whereas complaints pertaining to the legitimacy of the fees charged by the
district clerk are criminal-law matters. See id. (“Instead, Appellant contests the
assessment of the costs and the sufficiency of the evidence to support the attorney fees
mandated by the bill of costs. As discussed previously, his claim arises over the
enforcement of statutes governed by the Texas Code of Criminal Procedure, thereby
making it a criminal law matter.”). The Armstrong Court also pointed out that appellant
did not contest any withdrawal order issued by the trial court or any collection effort.
Id.
While a withdrawal order prompted Bowen to challenge the assessment of the
court-appointed attorney’s fees, the crux of Bowen’s complaints regard the sufficiency
Bowen v. State Page 8
of the evidence supporting the imposition of the court-appointed attorney’s fees. In
fact, like Armstrong, Bowen argues that the assessment of court-appointed attorney’s
fees in this matter violates the Mayer decision. See Mayer, 390 S.W.3d at 556-57. Similar
to Armstrong, we construe Bowen’s appellate complaint to constitute a challenge to the
legitimacy of the fees imposed in the trial court’s judgment. See Armstrong, 340 S.W.3d
at 764. In other words, we find that Bowen’s argument focuses not on the collection of
the court-appointed attorney’s fees, as was the case in Harrell, but on the propriety of
the trial court’s assessment of court-appointed attorney’s fees in light of the fact that
Bowen had been determined to be indigent. See id. Furthermore, it is noteworthy that
Bowen’s complaint involves several criminal statutes and court decisions. See TEX.
CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g) (West Supp. 2012); id. art. 103.001 (West
2006); see also Mayer, 309 S.W.3d at 556-57. Accordingly, we conclude that Bowen’s
complaint is analogous to that made in Armstrong, and as such, we find that this issue
constitutes a criminal-law matter. See id. at 764-66.
III. THE TIMELINESS OF BOWEN’S CHALLENGE
On February 6, 2013, we sent Bowen a letter, informing him that this appeal
appeared to be untimely. Specifically, we noted that “Bowen appears to challenge the
trial court’s assessment of court-appointed attorney’s fees in the November 23, 2010
judgment” and that his appeal appeared to be untimely. We warned Bowen that this
appeal might be dismissed unless, within twenty-one days after the date of the letter, he
showed grounds for continuing this appeal.
Bowen v. State Page 9
On February 22, 2013, Bowen responded to our letter. Though citing to criminal
case law in his response, Bowen argues that this is a civil matter—an argument that we
have rejected above. Bowen does not adequately address this Court’s concerns
regarding the timeliness of his challenge to the imposition of the court-appointed
attorney’s fees.7
As noted above, it was not until November 2, 2012 that Bowen filed his notice of
appeal challenging the propriety of the trial court’s assessment of court-appointed
attorney’s fees despite finding Bowen to be indigent. The initial assessment of the
court-appointed attorney’s fees occurred when the trial judge signed Bowen’s judgment
of conviction on November 23, 2010. Thus, we cannot say that Bowen timely filed his
notice of appeal in this matter. See TEX. R. APP. P. 25.2(b) (stating that an appeal is
perfected in a criminal case by the timely filing of a sufficient notice of appeal), 26.1
(noting, among other things, that the notice of appeal must be filed within thirty days
after the complained-of judgment or order is signed).
This Court has no jurisdiction over an appeal where the notice of appeal is
untimely. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). If an appeal is
not timely perfected, a court of appeals does not obtain jurisdiction to address the
merits of the appeal and can take no action other than to dismiss the appeal. See Slaton
7 In addition, Bowen mentions that the trial court entered a judgment nunc pro tunc on December
12, 2013, which excluded all court-appointed attorney’s fees, investigator’s fees, and interpreter’s fees.
Based on this admission, Bowen’s dispute in this matter also appears to be moot, as Bowen’s chief
complaint on appeal has centered on the trial court’s assessment of court-appointed attorney’s fees. See
Pharris v. State, 165 S.W.3d 681, 687 (Tex. Crim. App. 2005) (“A case that is moot is normally not
justiciable.” (internal citations omitted)); see also Duncan v. Evans, 653 S.W.2d 38, 41 (Tex. Crim. App. 1990)
(Onion, P.J., dissenting) (noting that when an order that is the subject of the appeal “has been vacated . . .
the question presented is moot. There is not presently a justiciable controversy. Normally when the
question becomes moot the case is dismissed.”).
Bowen v. State Page 10
v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Accordingly, we dismiss this
appeal for lack of jurisdiction.8 See TEX. R. APP. P. 44.3; Slaton, 981 S.W.2d at 210; Olivo,
918 S.W.2d at 522; see also Cargile v. State, No. 10-12-00081-CR, 2012 Tex. App. LEXIS
2919, at **3-4 (Tex. App.—Waco Apr. 11, 2012, no pet.) (mem. op., not designated for
publication) (dismissing a defendant’s appeal for lack of jurisdiction because, among
other things, he did not timely file his notice of appeal). All other pending motions are
dismissed as moot.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Dismissed
Opinion delivered and filed April 4, 2013
Do not publish
[CRPM]
8 Moreover, because Bowen’s appeal in untimely, we decline to address the impact of his waiver
on this case. See TEX. R. APP. P. 47.1.
Bowen v. State Page 11